‘In consideration of (supplier) entering into and continuing performance of the [P40/P38] Purchase order and its request for security for payments due from FCI under the Purchase Order, the parties hereto agree that in the event FCI fails to make any payment when due under the Purchase Order, Brasoil confirms an irrevocable commitment upon first written request from (supplier) to make payment directly to (supplier) subject always to the aggregate of any and all such payments not exceeding (US$ ). FCI acknowledge and agree that any payment made by Brasoil hereunder shall as between FCI and Brasoil be regarded as payment by Brasoil to FCI which may be recovered (subject to the settlement and reconciliation of all claims, costs and expenses due to either party which are hereby reserved) by Brasoil from FCI including, by way of deduction from any sums due to FCI from Brasoil under the provisions of the Supervision Agreement. FCI and (supplier) shall request Brasoil to countersign this side-letter confirming agreement to the contents hereof. This letter is not to be used as a guarantee to any other parties besides the undersigned and will be governed by the law and jurisdiction provisions of the Supervision Agreement.’
“Whether, on the proper construction of the Side Letter Agreement, each Side Letter Agreement gives rise to an obligation on the part of FCI to repay to Brasoil such sums, if any, paid by Brasoil to a third party supplier pursuant to such Side Letter Agreement; Where Side Letter Agreements were duly concluded between the three parties, they contained contracts between FCI, Brasoil and the third party supplier concerned. The Purchase Order referred to in the first paragraph was a reference to a contract between FCI and the third party supplier. Brasoil was not party to the Purchase Order/contract between FCI and the third party supplier. By signing a Side Letter Agreement FCI confirmed the existence of the Purchase Order/contract between FCI and the particular third party supplier. … The first paragraph of the Side Letter contained an irrevocable obligation by Brasoil upon first written request to pay the third party supplier “any payment when due under the Purchase Order”
“FCI acknowledge and agree that any payment made by BRASOIL in accordance with this REQUEST FOR PAYMENT hereunder shall as between FCI and BRASOIL be regarded as payment by BRASOIL to FCI which may be recovered (subject to the settlement and reconciliation of all claims, costs and expenses due to either party which are hereby reserved) by BRASOIL from FCI including, by way of deduction from any sums due to FCI from BRASOIL under the provisions of the Supervision Agreement.”
“At the request of FCI and FPCI, Brasoil agrees to pay the Settlement Sum, the Retention amounts for both P-38 and P-40 and all third party reimbursable cost to JSL in accordance with the terms of this Agreement and such payment shall be treated as made by Brasoil for and on behalf of FCI and FPCI.”
“Payment to a third party at the defendant’s request. For many years, reimbursement has been available through the action “for money paid” to recover money paid by a person to a third person at the request, express or implied, of the defendant, and with an undertaking, express or implied, on his part to repay it; and it is immaterial whether or not the defendant is relieved from a legal liability by the payment. This type of claim is not obviously contractual, since the implied undertaking to repay is often fictional; furthermore the claimant need not have been under any contractual obligation to make the payment, and the defendant’s request may not have referred to a precise sum of money. The ground for recovery is akin to the principle of law which imposes on the principal an obligation to indemnify his agent against any liability which he may incur in the exercise of his authority. However, although it is treated here [in Chapter 29 – Restitution] for convenience, it is not restitutionary since the claimant will be entitled to be indemnified even though his payment has conferred no benefit on the defendant.”
“Payment by request.Where a payment is made at the express or implied request of another, there will be a right to recover the amount of such payment from that other person, even though the person at whose request the payment was made has not thereby been relieved from any legal action. ….”
“It is important to draw a distinction between cases in which the claimant has a contractual right of indemnity, and cases in which he has a restitutionary right to reimbursement. Typical examples of a contractual right of indemnity are the right of the surety who has given a guarantee at the request of the principal debtor, and the right of the agent who has incurred expenditure at his principal’s request. In these cases, the claimant’s right of recovery is not limited to the benefit, if any, conferred on the defendant by the claimant’s payment. The claimant will be entitled to be indemnified against his expenditure, even though his payment may have conferred no benefit on the defendant, by discharging a liability or otherwise. Where, however, the plaintiff’s claim is restitutionary, the right is not to indemnity but to reimbursement to the extent that his payment has conferred a benefit on the defendant. …. ”
“If without an antecedent request a person assumes an obligation or makes a payment for the benefit of another, the law will, as a general rule, refuse him a right of indemnity. But if he can show that in the particular circumstances of the case there was some necessity for the obligation to be assumed, then the law will grant him a right of reimbursement if in all the circumstances it is just and reasonable to do so.”
‘At the request of FCI and FPCI, Brasoil agrees to pay the Settlement Sum, the Retention amounts for both P-38 and P-40 and all third party reimbursable cost to JSL in accordance with the terms of this Agreement and such payment shall be treated as made by Brasoil for and on behalf of FCI and FPCI.’
‘The Retention amount shall be paid without deduction on due dates in accordance with the Sub-Contracts’
“BRASOIL, FCI and FPCI hereby agree and confirm that they have no further claim/backcharge whatsoever against JSL in respect of the Conversion Works and Additional Works and JSL hereby agree and confirm that they have no further claim/backcharge whatsoever against BRASOIL, FCI and FPCI except for the agreed third party reimbursable cost.”
‘Subject to rules of court, in proceedings (whenever instituted) before the High Court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given…for all or any part of the period between the date when the cause of action arose and – … (b) in the case of the sum for which judgment is given, the date of the judgment.’